What It Will Take for Obama to Satisfy His Immigration Critics

April 21, 2014

Ever since the White House announced that it would review its deportation policies, to see what changes it can make on its own, immigration advocates have been letting it know what they’d like to see. One example is a new memo from the AFL-CIO, which Greg Sargent wrote about at The Washington Post on Monday. As Sargent says, with the memo, “The AFL-CIO is now, in effect, calling on Obama to go big with whatever solution he recommends.”

What would “going big” entail? It could start with setting up some kind of formal, legal recognition of the deportation priorities the administration already uses. Under current policy, if you don’t fall into one of the Department of Homeland Security’s high priority categories—which include convicted criminals, recent border-crossers, and people who have been deported before—it’s unlikely you’ll be deported. The AFL-CIO wants the administration to let people who are “low priority” apply for special, temporary work permits—in part, so they no longer live in fear of a knock on the door. It would be similar to what the administration has already done for immigrants who arrived in the U.S. as children, a.k.a. the “dreamers.” Hiroshi Motomura of the UCLA School of Law has described this to me as “giv[ing] people in [priority] group number 15 a piece of paper that says, ‘You’re group 15. We will not go after you.’” There’s virtually no debate among legal experts that such a move would be within Obama’s authority.

But this shift probably wouldn’t have a huge practical effect on deportations, since the administration already tends to pass over those who would be eligible for the authorization. According to Immigration and Customs Enforcement’s (ICE) 2013 data, only about 10,000 of the immigrants deported last year—less than three percent of the total—didn’t fall into any of the agency’s high priority groups. The much bigger problem for immigrant communities is the fact that the high priority categories are so broad. To make a significant impact on deportations, the administration would need to narrow them.

One option—which the Associated Pressnow reports is under consideration—would be to stop prioritizing the deportations of people who had been removed before and snuck back into the country; and of others who have run afoul of the immigration system, but not the criminal one. The original theory behind targeting these “repeat entries” was that leaving them alone undermined the whole system. But in many cases, these immigrants crossed the border a second time to reunite with family. The AFL-CIO memo also calls for dropping this policy, saying it “badly distorts DHS’s efforts to enforce immigration law in a manner that reflects rational enforcement priorities”; even ICE’s former director John Sandweg recently recommended abandoning it in an LA Times op-ed. The AP says the change “could shield tens of thousands of immigrants now removed each year solely because of repeated immigration violations” but “would fall short of deportation curbs demanded by activists.”

Another possibility would be to alter deportation policy toward people with criminal records. At the moment, anybody with a conviction is a high priority for deportation. But, as The New York Times has reported, a large number are guilty of relatively minor or petty crimes, like traffic violations. Obama could define the category more narrowly, so that it includes only more serious offenses, though it’s hard to say where he should draw the line.

Also in the AFL-CIO memo: A proposal that the administration set up an appeals process for immigrants who are sentenced to removal without seeing a judge. (About three-quarters of deportations in 2012 didn’t meet the standard of due process, as I’ve written here.) The labor federation also asks the White House to do away with programs that put state and local police on the lookout for illegal immigrants, like Secure Communities, which has upped the number of people deported for minor crimes.

Immigration advocates are focusing on deportations because they break up families or uproot people who have lived here for years as productive workers. At the same time, groups like the AFL-CIO hope the kind of work authorization proposed in the memo can do more than lift the threat of removal—it can free immigrants to fight for safer workplaces, higher pay, and better living conditions. “Based on our experience, most workers will not take action to enforce their workplace rights if they know they can be fired or, worse, deported if they complain about non-payment of wages, dangerous working conditions, or sexual harassment,” the memo says. “The same is true when undocumented tenants face unsafe housing conditions but fear reporting violations to housing authorities or community members confront crime or other dangerous conditions but fear contacting the police.”

The memo is not just a wishlist. It’s also a barometer of the current political climate for immigration. As Sargent writes, “White House officials appear persuaded that there is still an outside chance for action from House Republicans after the primaries are over and before the August recess.” But the memo is a reminder that “if August comes and nothing has happened, Obama’s supporters will ask how far he is prepared to go in easing deportations—not whether he is prepared to act to ease them.”